[This post builds upon themes further addressed in Anna Lukina’s article “Opening the Pandora’s Box: Kelsen and the Communist Theory of Law”, recently published in Jurisprudence and available here and here.]
In 1955 Hans Kelsen published his work The Communist Theory of Law [1], a monograph that aims to describe and critique the development of Marxist and communist theory from Marx and Engels to mid-twentieth century Soviet thinkers such as Andrey Vyshinsky, Sergei Golunskii, and Mikhail Strogovich. [2] This was not the first time Kelsen turned his attention to Marxist themes; his earlier work, The Political Theory of Bolshevism, had examined the perplexities of the Bolshevik dictatorship that embraced “anarchism in theory and totalitarianism in practice”. [3] In The Communist Theory of Law, Kelsen moved from exploring communist political theory in general to examining the status of law in particular, something that is the central theme of his better known work. [4]
Kelsen’s examination of communist law took place against the background of the Cold War. Fleeing Europe for the United States in 1940, he could not but be affected by the political mood of the time. Far from being a “purely” neutral observer, Kelsen engaged in explicit criticism of Soviet rule, lamenting, in the The Communist Theory of Law’s conclusion, “[t]he deplorable status of Soviet legal theory, degraded to a handmaid of the Soviet government”. [5] However, Kelsen’s attitude towards Marxism was not overwhelmingly negative, even during those years. For instance, in his Secular Religion, he said that “[s]o far as dialectic materialism is a causal explanation of social reality–and this is its main concern–it is certainly a scientific theory”, praising Marx and Engels’ development of Hegel’s criticism of religion. Kelsen withdrew the book from print in 1964, perhaps due to controversies about writing positively about Marxism at that time. [6] Thus, although The Communist Theory of Law’s success can be attributed to the political attitudes of the era, Kelsen treated Marx and Engels seriously and approached their writings without significant prejudice.
While The Communist Theory of Law’s political context must be borne in mind, it is clear that the book was part of a much grander legal-theoretical enterprise, involving far more than simple confrontation with Soviet legal theorists. Kelsen’s ultimate goal was to promote legal positivism: a “pure” theory of law free of political and moral judgment. As such, he concluded the book by stating that the communist theory’s failure to account for the nature of law was a reminder that “true social science is possible only under the condition that it is independent of politics”. [7] This broader aim of Kelsen’s monograph has been noticed by his readers. A particularly memorably example is provided by Reginald Parker, who wrote as follows in his 1956 review of the book:
“The present book is valuable, not because it helps in a battle against communism—to fight this political movement by pointing out the fallacies of its legal theories and theoreticians would be like throwing pebbles at a battle cruiser—but rather because it furnishes a tool in what ought to be our ever-lasting war against bemuddled thinking and wishdreams pretending to be reality. We must not forget that all the fallacies pointed out in Kelsen’s book have occurred in many of the non-communist writers throughout the ages, although not so concentrated.” [8]
What, then, were the “wishdreams” to which Parker alludes here? Kelsen himself refers to the communist theory of law as “only a variation of sociological jurisprudence widespread in non-communist countries”. [9] However, he is concerned not simply with challenging the likes of Roscoe Pound. In addition, and more importantly, he engages in a dialogue with natural lawyers–thinkers like Grotius, Pufendorf, Hobbes, and Locke–as far back as his first writings on the “pure theory of law”. Here the stakes of the debate are higher: while most sociological theories claim merely to describe and explain the law, natural law theories inquire into its moral justification. Not only do natural lawyers assess the moral qualifications of positive law, regarding morality as integral to law, but they also justify the law by attributing to it some higher authority. Thus, repudiating natural law theories has practical consequences beyond their descriptive correctness, as they can be used to promote or critique existing legal orders.
Kelsen explicitly describes Marx’s theory of law as a “natural-law doctrine”, subject to the same vulnerabilities he has already exposed in his prior work:
“Just as the natural-law doctrine can deduce from nature only what it has previously projected into it, its pretended deduction from nature is in truth an unavowed presupposition of the interpreter of nature, and the desired justice is hidden not in nature but in the jurist’s consciousness …. [T]he social truth which Marx pretends to develop out of social reality is his own socialist ideology projected into it. His reality, like the top-hat of a magician, has a double bottom, out of which anything you want can be produced by magic.” [10]
In other words, Marx and Engels, like natural lawyers, substitute their own views for what is purportedly an objective “natural law”. Therefore, their version of what is legally–and morally–justified is based on their own assumptions rather than any kind of objective “natural law”. However, these assumptions need to be justified independently–and, as Kelsen notes, natural law theorists fail to do so, instead presenting the “natural law” ideal as objectively valid. As a result, natural law thinking is a “blank cheque” which can be used to justify any legal system that is supported by one’s ideal, which in this case happens to be a communist one.
Consider, for instance, the notorious “base-superstructure relationship”, a key feature of Marx and Engels’ work. As part of the superstructure, law is created and constrained by the economic base—a mode of production, such as the capitalist mode of production, and its associated relations of production. The superstructure’s role is to reinforce and affirm the base. In other words, law has a foundation in something beyond posited norms and rules, and is therefore “natural” in the sense of lying outside the bounds of human control. [11] In addition, Marx and Engels believed that human beings are by “nature” free of domination, but that the “condition of life” in capitalist society resulted in the “outright, resolute and comprehensive negation of that nature”. [12] This alienation, among other things, was what justified the transition to communism, which would rid humans of alienation. In this sense, the theories of Marx and Engels do indeed build on “natural” phenomena independent of positive law, as Kelsen observed.
However, these elements of Marx and Engels’ theories only explain the origins and purpose of positive law sociologically (as the base-superstructure relationship does) and then subject it to critique (as the appeal to the natural freedom of humans does). They do not justify law in any form. Rather than using “nature” to advocate for a new vision of law, Marx and Engels call for the dismantling of capitalism and the gradual “withering away” of the law and the state. [13] It is thus difficult to claim that the Marxist understanding of law directly mimics the natural law approach, which appeals to an ideal of the rule of law informed by specific conceptions of morality. Indeed, it is even possible to reconcile Marx and Engels’ position with Kelsen’s own positivism, as their work focuses on law’s origins and operation and is largely neutral on questions about the “nature” of law, which might as well be defined as a system of norms. Marx and Engels’ (scattered and unsystematic) account of law is therefore a skeptical one and critiques the legal form as such, unlike natural law theories that have faith in legality at least so long as it is appropriately fettered by “natural law” considerations.
Contra Kelsen, Marx and Engels are decidedly not natural lawyers. Yet The Communist Theory of Law is still worth examining. First, apart from Marx and Engels and their intellectual heirs, such as Lenin [14] and Evgeny Pashukanis [15], Kelsen surveys writers such as Vyshinsky and Petr Stuchka [16], who saw a different role for law in post-capitalist society and envisioned a legal system built on principles of socialism. [17] Second, and more importantly, Kelsen’s book is an excellent example of an attempt to integrate communist legal thought into analysis of the mainstream jurisprudential canon. Although Kelsen errs by trying to fit the thought of Marx and Engels into the positivism-natural law binary, this mistake can be instructive in developing a truly universal theory of law, accounting not only for faith but also for skepticism towards the legal order as such. [18]
Anna Lukina is a graduate of the University of Oxford and Harvard Law School currently writing about jurisprudence, public law, and Soviet legal history. She can be reached on Twitter @ANNVYSHINSKY.
[1] Hans Kelsen, The Communist Theory of Law (New York: Frederick A. Praeger, 1955).
[2] See, e.g., Andrei Y. Vyshinsky (ed), The Law of the Soviet State, trans. Hugh W. Babb (London: Macmillan, 1948); Andrei Vyshinsky, “Fundamental Tasks of Soviet Law” [1938], in Soviet Legal Philosophy, trans. Hugh W. Babb (Cambridge, MA: Harvard University Press, 1951).
[3] Hans Kelsen, The Political Theory of Bolshevism: A Critical Analysis (Berkeley: University of California Press, 1948) 1–2.
[4] Kelsen uses “Bolshevism” and “communism” interchangeably, both as broad terms capturing the writings of Marx and Engels as well as the Soviet theory of law and state. I follow Kelsen’s terminology when discussing his general claims, referring to specific writers, works, and theories as needed.
[5] Kelsen, Communist Theory of Law, 193.
[6] Hans Kelsen, Secular Religion: A Polemic Against the Misinterpretation of Modern Social Philosophy, Science, and Politics as “New Religions” (Vienna: Springer, 2012 [1964]) 167. See further Iain M. Stewart, “Kelsen, the Enlightenment and Modern Premodernists” 37 (2012) Australian Journal of Legal Philosophy 258; D. A. Jeremy Telman, “The Free Exercise Clause and Hans Kelsen’s Modernist Secularism“, in D. A. Jeremy Telman (ed), Hans Kelsen in American–Selective Affinities and the Mysteries of Academic Influence (Vienna: Springer, 2016).
[7] Kelsen, Communist Theory of Law, 193.
[8] Reginald Parker, “The Communist Theory of Law by Hans Kelsen“, 8 (1956) Western Reserve Law Review 104, at 106.
[9] Kelsen, Communist Theory of Law, 2, 193.
[10] Kelsen, Communist Theory of Law, 20.
[11] As famously described in Karl Marx, “A Contribution to the Critique of Political Economy” [1859], in Karl Marx and Frederick Engels, Collected Works, vol. 29 (London: Lawrence and Wishart, 1987).
[12] Karl Marx and Friedrich Engels, “The Holy Family, or Critique of Critical Criticism” [1845], in Karl Marx and Frederick Engels, Collected Works, vol. 4 (London: Lawrence and Wishart, 1974) 5, at 36.
[13] This “withering away” of the law and state was described by Engels in the following famous passage: “[s]tate interference in social relations becomes, in one domain after another, superfluous, and then dies out of itself; the government of persons is replaced by the administration of things, and by the conduct of processes of production. The state is not ‘abolished’. It withers away.” Friedrich Engels, “Anti-Dühring” [1877], in Karl Marx and Frederick Engels, Collected Works, vol. 25 (London: Lawrence and Wishart, 1987) 5, at 268.
[14] Primarily in V. I. Lenin, “The State and Revolution” [1917], in V. I. Lenin, Collected Works, vol. 25 (Moscow: Progress Publishers, 1974).
[15] Evgeny Pashukanis, “The General Theory of Law and Marxism” [1924], in Pashukanis: Selected Writings on Marxism and Law, ed. Piers Beirne and Robert Sharlet, trans. Peter B. Maggs (London: Academic Press, 1980).
[16] Petr Stuchka, “The Revolutionary Part Played by Law and the State: A General Doctrine of Law” [1921], in Soviet Legal Philosophy, trans. Hugh W. Babb (Cambridge, MA: Harvard University Press, 1951).
[17] On this see further Anna Lukina, “Opening the Pandora’s Box: Kelsen and the Communist Theory of Law” (2020 forthcoming) Jurisprudence 1, at 20–26 (SSRN version). See also Anna Lukina, “Between Exception and Normality: Schmittian Dictatorship and the Soviet Legal Order” (2020) (SSRN version), 20–22, 30–33.
[18] This was inspired by the conversation with Lewis Sargentich as part of his class on “Theories About Law” at Harvard Law School.
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